Session Two: Improving the Election of Judges, Part I - A. James Elliott, David W. Clark, Mary Klenz, and Elizabeth A. Price, Moderator

• Jurisdiction: United States,Federal
• Publication year: 2005
• Citation: Vol. 56 No. 3

Symposium:

Judicial Professionalism in a New Era of Judicial Selection

October 22,2004

Session Two: Improving the Election of Judges, Part I

MS. PRICE: I am Liz Price with the law firm of Alston and Bird in Atlanta. It's my pleasure and honor to have this distinguished group here to talk about improving judicial elections. Let me introduce our panelists.

We're going to start with David Clark, who is a partner at Bradley, Arant, Rose & White in Mississippi. David has a commercial litigation practice, which includes a broad range of clients and issues in state and federal court. He has substantial trial experience in complex commercial, product liability, and securities litigation. He was named by the American Tort Reform Association as Legal Reform Champion in June 2004 for his work in civil justice reform in Mississippi. He's also listed in the Best Lawyers in America in the field of business litigation.

We also have Mary Klenz. Mary is the Co-President of the League of Women Voters of North Carolina. She's the founder and owner of the Klenz Insurance Agency for Nationwide Insurance since 1979. She's a member of the League of Women Voters' United States Nominating Committee. She'sthe past president and vice president of the Charlotte-Mecklenburg League where she helped coordinate Civics 101 for the Charlotte League. This is a program that won a national award and is used throughout the country.

We also have Jim Elliott, the Associate Dean at Emory University School of Law. Jim teaches Ethics, Banking, and Commercial Real Estate Finance. He practiced law at the Atlanta firm of Alston and Bird for twenty-eight years prior to coming to Emory. He is a Fellow of the American College of Real Estate Lawyers as well as the American and Georgia Bar Associations. He is past President of the State Bar of Georgia. He served on various Supreme Court commissions dealing with professionalism and lawyer discipline, and he serves on what we call the "Bill Ide Committee." It has a much fancier name along the lines of the Judicial Campaign Conduct Committee. And I am sure he is going to tell us a good bit about that.

I don't know if any of you got a chance to look at the Atlanta Journal Constitution this morning. Front page. "Big Bucks Buy Blitz in Judge's Race."' I'm not going to read you the whole thing, and by reading this I'm not expressing an opinion about any of the candidates. This just goes to the issues that Barbara and others in the first panel raised with respect to raising money and the notion that justice may be for sale.

Howard Mead seems to be doing all he can to make the most of a second chance. Once a lawyer for Democratic Governors Zell Miller and Roy Barnes, Mead has spent a record 1.3 million dollars for a chance to sit on the Georgia Court of Appeals, in what typically would be a low-profile race. As Mead blankets the airwaves with TV ads, his two opponents are accusing him of trying to buy the election and of denigrating the legal profession.

The article discusses why this is now a three person race in the election. It goes on to say,

Mead has raised a record amount for a judicial campaign in Georgia, thanks largely to [just over a] million dollars in personal loans to his campaign—for a job that pays $152,139 a year.

Mead . . . said he wants to follow in the footsteps of Elbert Tuttle, the former federal appeals court judge in Atlanta whose landmark rulings in the 1960s led to the integration of public schools and facilities.

"Our courts are too important to let special interests start taking them over by electing their own candidates," Mead said. "If there's something I can do to step up to the plate and stop that, I'll do it."

To get his message across, Mead has spent more than one million dollars on some of the most pointed TV ads in the history of Georgia's judicial elections. While some ads extol Mead's work at the Capitol,

others take shots at his opponents for becoming criminal defense lawyers.

One ad notes that while Mead left a lucrative law practice and entered public service to fight for tougher DUI laws and remove corrupt public officials from office, [his opponents] Bernes and Sheffield "made different choices." They left their positions as prosecutors "to become high-priced criminal defense lawyers and work for the kind of people they once sent to jail."

I won't read you the rest of it. You're welcome to come look at it. Perhaps that gives you a bit of a flavor. In the first panel, Eric Schroder said, "How depressing." It reminds me of the quip, "Other than that, Mrs. Lincoln, how did you enjoy the play?" It is kind of depressing.

But I would like to perhaps turn it over to our panelists to talk about what's going on in these various states and what we are trying to do to improve judicial elections. And I am going to start with Jim Elliott.

MR. ELLIOTT The committee that Liz referred to is actually formally called the Georgia Committee for Ethical Judicial Campaigns. It was formed in great part at the instigation of Bill Ide, who called it, and he of course prefers that I not refer to it this way, "sixty-six do-gooder citizens,"of which I was one. In fact there are several others who are sitting in here today. These are concerned citizens. About a third of them are non-lawyers. They are all volunteers, therefore, there is no State action. But they are concerned about judicial elections, which are really different from elections in the other two bodies. Judges do not represent anyone, and there should be a difference.

Now, the committee was formed and adopted by-laws. It had as a part of its purpose to do some of those things that the JQC would have done earlier that, because of the two decisions that have already been referred to today, were no longer able to do.

Now, what power did this committee have? Well, it had only the power of moral suasion and the power to use its own First Amendment rights to comment on the conduct that the committee felt was inappropriate.

It could act on its own motion, though it preferred to act as a result of complaints having been filed, and during the campaign there was only one complaint. That complaint was filed as it related to a fundraiser that was held. It was organized by a group of women lawyers, and the invitation suggested that there was a concern by this group of lawyers that female judges had been singled out in the sense of having campaigns launched against them. Now, there was concern that Justice Leah Sears was going to somehow benefit from that complaint. An investigating committee was appointed and determined that Justice

Sears had had nothing to do with the formation, that there was nothing in the statements that were made that could be proven to be in any way misleading, and it was dismissed.

Now, what had we done? Well, as soon as each candidate would announce that they were going to run for the judicial offices, we asked by mail and by a phone call that they sign a pledge. That pledge was asking them to conduct their campaign at a level that was above that which was constitutionally protected as a minimum. And we have already heard about some of the things that it covered. For instance, it asked that they take no position on issues that would likely come before their court, that they would not issue false and misleading statements, and that they would solicit contributions by a committee only.

As an aside, I think that pledge really is more important. It has been given a great deal of emphasis. Business Week, which is not considered one of your normal left wing publications, has done a survey of almost a thousand elected judges.' In response to the question, "Do campaign contributions have an impact on your decisions?"there was a continuum where they could say anywhere from "absolutely"through "sometimes," all the way down to "never." Roughly 70 percent of the judges said they were either "always"or "sometimes"affected in their decision making by campaign contributions. I frankly find that terrifying.

Do we gain a great deal by the potential insulation of the committee? I hope so. I know there are many judges who utilize committees to raise money, and do not look at the disclosures to determine who gave them campaign contributions. But in any event, one of the things we asked for in the pledge was that a committee be formed. only three of the nine candidates signed. And when I say nine we were talking about statewide appellate courts that included unopposed candidates and incumbents. one of the two candidates on the supreme court signed the pledge. Two others who were running for the court of appeals signed the pledge. Four others made oral commitments to abide by the comments in the pledge but did not sign it.

In addition to the one complaint that was filed, there was last-minute flap that the Democratic Party had figured out a way to acquire about $150,000 in additional funding right at the very last minute because of what appeared to be a loophole in the campaign financing law. They were able to run ads on behalf of Justice Sears because they included two other candidates who happened to be unopposed in their own elections, and it was, therefore, a slate as opposed to one for a particular candidate. There was no complaint filed, at least with us, by the other side. In fact, in a conversation with one of the supporters of the opponent of Justice Sears, the comment was, "No, we're not going to file a complaint. We're just embarrassed we didn't think of it first."

Now, I thought that was a very practical way of dealing with an issue. Just acknowledge that you didn't think of it first.

Have we had any impact? I think perhaps so. There is no empirical data that says that. I think there was the ultimate of moral suasion. I think the fact that when the Christian Coalition sent out its questionnaire, that only...